TRUSS & TRUSS

[2011] FamCA 1059

FAMILY COURT OF AUSTRALIA

TRUSS & TRUSS [2011] FamCA 1059

FAMILY LAW – Costs

Family Law Act 1975 (Cth)

APPLICANT: Ms Truss

RESPONDENT: Mr Truss

FILE NUMBER: MLC 9156 of 2010

DATE DELIVERED: 27 July 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 27 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dickson

SOLICITOR FOR THE APPLICANT: Gillian Coote Family Law

THE RESPONDENT: In person

Orders

1. That there be orders in accordance with the minutes of proposed orders marked Exhibit “A” sealed and attached hereto AND IT IS DIRECTED that such minutes remain upon the Court file.

2. That the husband pay the wife’s costs fixed in the sum of $17,000 and be paid according to the terms of the attached minutes 



IT IS NOTED that publication of this judgment under the pseudonym  Truss & Truss is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 9156 of 2010

Ms Truss

Applicant

And

Mr Truss

Respondent

REASONS FOR JUDGMENT

1. This is an application in a case filed by the wife on 30 June 2011.  She has appeared today by counsel.  Mr Truss, who apparently had some sort of legal advice and was initially indicating that he was not well enough to attend, has, in fact, attended and represented himself.  For reasons which escape me, he has left the Court, deciding that there is not much that anyone can do for him.  In my view, he is the master of his own demise.

2. The application before me is an enforcement application.  This was a matter before the Court on 10 November 2010.  It was a property matter and on that day Mr Dickson of counsel appeared for the wife and, again, Mr Truss appeared unrepresented.  Orders were made.  Prior to me making those orders, as the transcript for some reason or other which has been provided to me shows, there can be no doubt that Mr Truss had no hesitation in agreeing to the orders, had had legal advice and was not concerned about the fact that discovery might not have been completed.   

3. The whole picture he then painted oozed with optimism about his financial future.  Sadly, he seems to have fallen on tough times and his position today was that the Court should simply review the orders under s 79A and specifically s 79A(1)(b).  The dilemma is that no indication has been given that he proposes to do anything about that and nearly eight months has gone by and no application has been made.  His view is that the wife was offered money in the alternative to the orders which in his view she should have accepted and. in fact, were too good to refuse.  Needless to say, she was a judgment creditor and chose to reject his proposals. 

4. He is clearly very angry about things but there is little I can do to assist him if he will not take the course that he himself seems to understand is open to him.  If, in fact, he decided to bring an application on the basis that his financial circumstances had changed, that cannot necessarily mean that the orders cannot be complied with.  What it might more likely portray is a picture in which his financial circumstances have altered from what he thought he was getting under the orders.  Be that as it may, I do not have any application other than the one before me to enforce the orders.  It is perhaps also important to say in this case that these orders were drawn with an eye to the precise.  Every conceivable thing that I could consider that might be necessary in an order to avoid there being any future dispute is there;  even down to the question of costs and interest rates and what is to happen in the event that indemnities were not complied with.  The orders are extremely tight and extremely precise. 

5. It would appear, on any view, that Mr Truss has failed to comply with the orders.  The very first warning bell should have been made apparent in paragraph 1 when Mr Truss was obliged to pay $25,000 to his wife within seven days of those orders being made.  The consequences of not making the payment were clearly set out in the order.  As I said, the transcript of that day will show that Mr Truss had spoken to “a legal person” and he did not seem to have any concerns about the preciseness of the orders.  On that basis, there is no logical reason why the orders ought not simply be enforced. 

6. The wife has sought quite precise orders again today.  They are orders which effectively implement what was precisely put in place in November.  I see no reason why those orders should not simply be implemented.  I propose to make orders in terms of the relevant paragraphs of the application, specifically paragraph 2 with the exception of paragraph 2(d)(iv) and in respect of paragraph 2(e), whilst I will make an order for costs it will not be on an indemnity basis.  In leaving the Court, Mr Truss did not have the opportunity to hear the wife’s application for costs, but he was certainly aware of it because it features twice in the documents that he has had since approximately the start of July, if not the end of June.

7. There can be no doubt that he was conscious of the fact that that application was going to be made.  Section 117 of the Act provides that each party pays their own costs even in an enforcement situation unless the Court is satisfied that there are justifiable circumstances to depart from that principle in which case the Court must contemplate the matters in s 117(2A).  Again, there is an unusual feature of the orders made in November 2010 because they actually provided that in the event of default, the husband consented to paying the wife’s costs incurred as a result of his failure to make the relevant payment. 

8. So to the extent that I am being asked to make an order for costs in respect of the non-payment of the $50,000, the husband has already consented to that order.  In respect of the balance of the enforcement application, to the extent that it is relevant, there is no doubt Mr Truss has done nothing for a number of months.  He came along to Court today with no documents prepared and with little argument to put.  There was no proposal put to the Court that would have enabled the Court to exercise its discretion in his favour.  There is little I can do other than make an order for costs in a case such as this and in circumstances where, whilst he may say that he is dropped from a salary of $200,000 to $40,000, there are properties here which are to be sold and from which he will presumably receive some cash. 

9. In addition, one of the fundamental questions in s 117(2A) is the non-compliance with court orders.  On that basis and taking into account the other matters in that section, there is every reason for me to make an order for costs.  Whilst the wife seeks an order for indemnity costs, it was not seriously pressed.  She has incurred significant costs.  I do not have the benefit of any precision about what costs would be incurred on the scale but on any view the wife has gone to a lot of trouble to try and get this matter sorted out.  She has faced other issues which have involved her lawyers trying to sort out the mess that, unfortunately, Mr Truss has created by not complying with the orders. 

10. Working on the basis of approximately 80 hours or thereabouts, which is not entirely what the wife is seeking, but having looked at what she has done in the two affidavits, it is clear that she would have incurred considerable time with her lawyers and using the scale, I think the appropriate sum is about $16,000.  Counsel’s fees have been incurred and whilst this is a matter that the wife will, no doubt, be charged much more than the scale, the scale allows me to consider something in the vicinity of $1000 and I think that is appropriate in the circumstances.  Overall, rather than put the parties through an assessment process having regard to what has gone on the last eight months, it is appropriate that I exercise the discretion and make a specific order for $17,000 costs to be paid by the husband. 

11. Finally, one of the issues relates to the transfer of a property that the husband seems to have done nothing about.  The wife seeks various steps be taken and failing those steps be taken by the husband that she have the opportunity to have a Registrar sign the necessary documents.  The usual way in which that should be done is that rather than have the Registrar try and work out whether there has or has not been compliance, an affidavit should be filed by the wife’s solicitor deposing to the precise details of the failure so that there can be no misunderstanding and the Registrar will know exactly what orders she or he is required to sign. 

12. In paragraph 8 of the draft orders I shall add in the words in the third line after the words, “Registrar of the Family Court of Australia, in the name of the husband”.  Paragraph 9 I will alter to read – 


RECORDED  :  NOT TRANSCRIBED

So I will alter paragraph 9 to read that, “The husband pay the wife’s costs fixed at $17,000”.  And in paragraph (e), “in payment of the wife’s costs” – in fact, why I don’t just make it $17,000 rather than the rest of that sentence – “and to the wife’s costs of $17,000”. 

RECORDED:  NOT TRANSCRIBED

The solicitor for the wife to engross within 24 hours, if possible. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 27 July 2011.

Associate: 

Date:  11 January 2012